TB5-03098

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB5-03098 TB5-03099 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX) XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) (a.k.a.XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 24, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre Reasons and Decision [1] XXXX XXXX (hereinafter referred to as the Principal Appellant (P.A.)) and his spouse, XXXX XXXX (the Appellant), both citizens of Pakistan, are appealing the decisions of the Refugee Protection Division (RPD), denying their claims for refugee protection. The Appellants have submitted new evidence in support of their appeals and are requesting that the Refugee Appeal Division (RAD) conduct an oral hearing pursuant to ss. 110(6) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [2] This appeal is dismissed. Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD. Background [3] The P.A. and his wife are both Christians, who were born in Pakistan. However, they have spent most of their lives outside the country. They resided in Kuwait from 1994 until 2014, the P.A. working as a XXXX XXXX in a school XXXX XXXX XXXX XXXX. From 2001, the Appellants spent time in Canada visiting their son during their summer vacations. However, in 2014, the P.A. retired, and they returned to Pakistan from Kuwait on XXXX XXXX, 2014. They planned to conduct major renovations on their home, which were long overdue. [4] The Appellants decided to place their nameplate "XXXX" outside their house beside their entrance gate. However, the P.A.'s neighbour's son questioned why the word "XXXX" was there when they were Christians, and that name should not be used by Christians. He demanded that the nameplate be removed. The P.A. decided to speak to the boy's father, who is an army officer by profession, as he was shocked at his attitude. It was then that the Appellants realized that intolerance of non-Muslims had increased during their time out of the country. [5] That night, according to the Appellants, they received anonymous phone calls threatening and warning them of the consequences of disrespecting Islam in Pakistan. Later, the Appellants went to stay with a friend in Islamabad. However, the P.A. learned the following day that somebody had fired several gun shots at his home and his nameplate was spray painted black. [6] The Appellants went to the police station; however, there were only two head constables on duty. The P.A. was asked if he or any others had witnessed what had occurred. The police constable did, however, obtain the P.A.'s phone contact and indicated that he would talk to his superior and call the P.A. the following day. That evening, the P.A. received another anonymous threatening call, this time uttering threats that the Appellants are blasphemers. Since the Appellants were already in possession of valid Canadian visas, they booked a flight and left Pakistan on August 29, 2014. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL Express Statutory Conditions [7] Section 110(4) of the IRPA provides that the Appellants may only present evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [8] The following new evidence has been submitted to the RAD: * a letter, dated April 1, 2015, from XXXX XXXX XXXX, indicating oppression as a Christian; * an article from the Internet, dated April 16, 2015, in which it indicates that a Christian boy dies five days after being set on fire; * an article from the Internet, dated April 16, 2015, entitled: Killing Christians: A State-Sponsored Crime in Pakistan, referring to an article dated November 27, 2014; * a sale agreement, dated XXXX XXXX, 2009; * a sale/purchase agreement (deed), dated XXXX XXXX, 1988; and * medical documents from XXXX XXXX XXXX XXXX - a requisition, dated March 9, 2015, and an agreement from the P.A., dated April 1, 2015, indicating that he assumes full payment responsibility for all charges provided by XXXX XXXX XXXX XXXX, not covered by the Interim Federal Health Program. [9] The RAD finds that the letter from XXXX XXXX, references information which pre-dates the rejection of the claim, and therefore, does not meet the statutory requirements and could reasonably have been available prior to the rejection of the claim. Likewise, the RAD finds that the article from the Internet dated April 16, 2015 references an incident which took place prior to the rejection of the claim and therefore, does not meet the statutory requirements. No explanation has been provided for the delay in forwarding these documents. The article, dated April 16, 2015 also refers to an incident which took place prior to the rejection of the claim. [10] With respect to the documents relating to housing, they pre-date the rejection of the claim and, therefore, do not meet the statutory requirements. [11] The medical documents from Canada do not relate to the appeal and will, therefore, not be admitted. [12] Since the foregoing documents are not admitted, the RAD cannot conduct an oral hearing pursuant to ss. 110(6) of the IRPA. ROLE OF THE RAD [13] The Federal Court has provided the RAD with guidance with respect to its role. In Huruglica,1 Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision. [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [14] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. The RAD has applied the reasoning as set out in Huruglica.3 SUBMISSIONS BY THE APPELLANT a) Did the RPD err when accepting that the translation from Urdu to English was satisfactory? The P.A. submits that this was pointed out to the RPD during the hearing. b) Was the RPD aggressive in its attitude, thereby restraining the Appellants from expressing themselves openly? Interpretation [15] The P.A. submits that the standard of interpretation was not good and that he had to intervene on occasion with the interpreter. [16] The RAD has listened very carefully to the entire audio recording of the proceedings. The first sitting was adjourned to provide an interpreter capable of interpreting in the Urdu language. At the morning sitting on January 26, 2015, there were no objections to the interpretation. Moreover, at no point, did the RAD find that there was a necessity to repeat the responses. The RAD finds that it was the p.m. sitting of this claim that caused the Appellant to question the interpretation when confronted with the word "paste" when referring to how the nameplate was affixed to the gate of the P.A.'s residence. The RPD reviewed the audio recording to ensure that the word "paste" was, in fact, used in the a.m. sitting. The RAD has done the same and concurs with the RPD in this regard. It is possible that the P.A. did not hear the interpreter use this word; however, the RPD was correct in identifying that this word had been used. Having said this, neither the RPD nor the RAD are in a position to know, in the absence of an interpreter's audit, if the proper translation was provided. Accordingly, the RAD finds that the RPD placed too much emphasis on the use of the word "paste" as opposed to "put". However, the RAD finds that there is nothing in the audio recording that would suggest that the interpretation was anything but professional in terms of the overall proceedings. Moreover, the RAD has not found anything on the audio recording to indicate intervention on the part of the P.A. with the interpreter and, by his own acknowledgment he has some command of the English language. Accordingly, the RAD finds that the Appellant's argument with respect to the quality of the interpretation is without merit. RPD's purported aggressiveness [17] After reviewing the audio recording of the proceedings, the RAD finds that the RPD acted in a judicious and professional manner. We find that there were no instances where the P.A. was not afforded the opportunity to respond. In fact, the RAD noted on a number of occasions that the RPD asked the P.A. if he had anything to add, thereby allowing ample opportunity to provide additional details. In totality, the RAD finds that the RPD was cognizant of the fact that the Appellants were unrepresented and, accordingly, took the time to explain the process and ensure that the issues were clearly understood. [18] The RPD addressed the issues of credibility and objective basis for the claim. The purported fatwa4 [19] On August 14, 2014, the Appellant testified that they found themselves involved in a confrontation with their neighbours over the use of the family name "XXXX", which in their view should only be used when referring to Muslims. The Appellants then learned of the issuance of a fatwa, sent to them the first week of XXXX 2014. [20] The RPD found the following problems with the fatwa: a) Although the RPD gave the benefit of the doubt to the Appellants, the fatwa indicates that the P.A. converted from Islam to Christianity, rather than the fact the P.A.'s grandfather converted two generations before him. However, to be fair, the RPD indicated that perhaps the P.A. was judged by the author of the fatwa as essentially guilty by association with his grandfather, since the P.A. had been born a Christian. b) However, the RPD found another problem with the fatwa which was less easily explained away. The P.A. was asked when the fatwa was issued against him. The P.A. could not recall the date but testified that it was pasted or put on the gate of his house and a friend of his had informed him. The P.A. described how his friend had mailed the original to him; however, the RPD noted that this original appeared to be a photocopy displaying two reference numbers apparently handwritten in pencil. c) The RPD asked the P.A. why the fatwa was in pristine condition, after being "pasted" on the gate of his home. The P.A. insisted that he had not used the word "pasted", but rather that it was attached somewhere on the gate. The interpreter after lunch changed; however, the RPD was cautious and reviewed an audio recording of the original exchange to confirm that the word "paste" was, in fact, stated. However, the RAD has found that nothing should hinge on this word, given the absence of an interpreter's audit. Nevertheless, the RPD found that the P.A.'s assertion that he had stated that the fatwa was put in an envelope and placed on the gate was not what he initially said when asked about the provenance of the document. The RPD, after a review of the audio recording, found that the recording was unambiguous in this regard and, therefore, concluded that the fatwa was inauthentic and the P.A.'s evidence in this regard was lacking in credibility. d) The P.A. submits that the RPD did not consider the threat that a fatwa carries and that, once it is issued, there is no life guarantee. Moreover, the P.A. argues that he did not realize that the condition of the fatwa would be an issue rather than discussing the contents of the fatwa, and since it was reported by the P.A.'s friend, he was unaware of its condition. Furthermore, the P.A. argues that in the Urdu language there are words with multiple meanings, which are sometimes difficult to translate. [21] The RAD notes that the P.A. was unable to recall the date of the issuance of this document, which in the RAD's opinion is significant. Moreover, even if the RAD accepts the word "paste" as opposed to "put", the RPD did not err in questioning its pristine condition as it was placed outside on a gate. Furthermore, after listening to the audio recording of the proceedings, the RAD finds that the P.A. was unable to provide any specific information in this regard, other than he received the fatwa in an envelope from Pakistan. The RAD finds that although the RPD focused on one aspect erroneously, its conclusion was absent of any error given the foregoing. Threat to return to Islam [22] The P.A. alleged at the hearing that, during one of the threatening telephone calls, he was warned that a fatwa was being prepared and would be issued shortly and that the P.A. should accept Islam. In addition, the Appellants provided a letter from a XXXX XXXX XXXX5 in which it also indicates the demands for the P.A. to convert back to Islam or face the consequences. These demands are not contained in the P.A.'s Basis of Claim (BoC) form. The RPD did not accept the P.A.'s explanation that he should be brief in his BOC and considered this a serious omission. [23] The P.A. submits that he omitted the foregoing as there were so many incidents that took place that he would have had to write many pages. [24] The RAD finds that this is a serious omission, particularly when one considers the earlier findings in respect to the fatwa. The RAD does not accept the Appellant's explanation that, in light of the many incidents, he did not mention the alleged demands that he convert back to Islam. The RAD finds that, not only is this document significant, but the Appellant has for the most part been out of Pakistan for the past twenty years, and, therefore, his assertion that there were so many incidents simply does not make sense. It was allegedly his return following retirement that led to the problems contained in his BOC. If such were the case, then this issue is all that more important, and the RAD concurs with the RPD that the P.A. has not provided a reasonable explanation for this omission. Threat against the Appellant (the P.A.'s wife) [25] It was acknowledged that no direct threat had been made against the P.A.'s wife; however, the P.A. took the position that anyone living with the target of a religious edict would be at risk as a consequence thereof. [26] The P.A. submits that, once there is a problem against a single person, the entire family is under the same threat. [27] The RAD finds there is no issue in this regard, as the RPD, in fact, found that if the P.A. had a credible claim, then his wife, having lived with him, would also be a target. Objective basis to the claim [28] The Appellant testified that his grandfather had converted from Islam to Christianity and that is why his Christian family had the Muslim surname "XXXX". Although the P.A. alleged that he had faced discrimination all his life on account of his name, he conceded that he had never faced the prospect of violence prior to August 2014. The RPD noted that there was no reference in the country documents to others who have faced similar problems, namely their use of the surname "XXXX" to be horribly objectionable for religious reasons. [29] The P.A. submits that the RPD erred when it stated that he had never faced violence before XXXX XXXX 2014. He argues that he visited Pakistan occasionally; he was not mixing with people, and his major movement was among relatives. Moreover, it is argued that the level of intolerance has risen many times higher in Pakistan. [30] The P.A. further submits that the RPD misunderstood the use of the surname "XXXX" by a Christian as being highly intolerable to Muslims. He also argues that the RPD's statements that only the poor or uneducated are facing threats is erroneous. He submits that, once one is accused of blasphemy, then no one can save him no matter what social position or status the accused person holds, and he cites an example of the Governor of the Punjob Salmaan Taseer when he was murdered in 2010 because he showed sympathy for Aasi Bibi, who was falsely accused under blasphemy law. [31] The RPD noted that the country documentation suggests that the Appellants' fears as Christians in Pakistan are not objectively well-founded. It noted that, although there is sectarian violence in Pakistan, the most likely victims tend to be poorly educated, economically disadvantaged converts to Christianity living in rural settings. However, it found that this was not the case at bar. The RPD noted in particular that the P.A. was not a convert to Christianity, but rather he was born into the faith and observant throughout his lifetime. Accordingly, the RPD found no objective basis for the claims. [32] The RPD did not accept that the Appellants had been accused of blasphemy. Moreover, the RPD did not state that the Appellants would be targeted as converts to Christianity. In fact, it stated that they had been born Christians, and it was only the name "XXXX" by virtue of the P.A.'s grandfather, to which it was referring. The RPD found that the issuance of the fatwa was lacking in credibility. The RAD concurs that the Appellants provided no corroborative evidence to lead it to conclude that, as a descendant of a Muslim, a Christian for two generations, the use of the name "XXXX" translates into persecutory measures against them. [33] In conclusion, the RPD found that the Appellants had fabricated the story of their alleged confrontation with their neighbours regarding their use of the surname "XXXX" and their allegations that they face persecution accordingly. [34] After conducting an independent assessment of the entire record of the proceedings, the RAD concurs with the RPD's findings. The RAD finds that there was insufficient persuasive evidence to lead it to conclude that the allegations were credible. The RAD specifically finds that the issuance of the fatwa is called into question as well as the alleged demands that the Appellants convert to Islam. Accordingly, the RAD finds that the Appellants are not Convention refugees or persons in need of protection. [35] This appeal is dismissed. Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD. (signed) "Roslyn Ahara" Roslyn Ahara June 24, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C. No. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Huruglica, supra, footnote 1. 4 Exhibit RPD-1, RPD Record, p. 239. 5 Exhibit RPD-1, RPD Record, at p. 223. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03098 TB5-03099